Sunday, July 21, 2013

Often, the attorney-client relationship is pretty tame. The issues to the client begin as subjectively major and once an attorney comes in, turns into an objectionably minor problem. The attorney helps to solve the problem for the client and both part ways. Hopefully, if the attorney in question did a really good job a continuous relationship begins.

But every once in a while (once so far for me), a client is so utterly disappointed with the outcome that he or she will complain to the Florida Bar and ask for their money back. This mostly happens when, for whatever reason, the case is lost. When such a complaint is made against an attorney, it is referred to the Florida Bar Fee Arbitration group.

It should be understood that there is no requirement for an attorney to agree to fee arbitration, although apparently there is an ethical requirement to strongly consider it. So when I ran across such a client, and the fee arbitration request came in, I ultimately decided to agree for two reasons:

The first was because I wanted to have the complaint heard by a third party neutral. Being a new attorney, it was important to me to find out if I did anything wrong. The second, I wanted to understand the process a little better and try to pass that experience on to other attorneys considering accepting an invitation: which I recommend.

The Facts: Briefly

It was a basic eviction case. The tenants had complaints about the home and issued a 7 day notice with intent to withhold. The landlord filed an eviction complaint in retaliation. I accepted the tenants' request to defend based on two meetings I had them, and submitted an answer to the complaint. Pretty cookie-cutter stuff at that time.

Only later did I find out that one of the tenants had engaged in acts against the landlord which were questionable at best. Also, upon deeper investigation of the facts almost all of the defenses needed to be withdrawn, leaving the defendant... well, practically defenseless. The case, which looked great on the surface, evolved into something quite flimsy. It was time to settle and mitigate any damages.

Luckily, the landlord was amicable to a swift settlement and what was finally agreed to ended up losing my client very little. The outcome had it proceeded to trial would have been financially devastating to my client. All in all, I walked away quite happy my client didn't get crushed under attorney fees, court costs, and moving costs.

My Clients' Point of View

As my clients were moving, and agitation at not having their day in court started to build up. The case was not yet closed when my clients called and emailed and threatened to report me to the Florida Bar. I sent them the website to the Florida Bar and promptly informed them that I was going to withdraw. The other attorney did not object.

To my clients, I was the attorney who failed them. They believed I was unwilling to confront the other attorney, go to trial, and gave up on them. No doubt as they finished performing their end of the settlement agreement they had grown to resent me, and the experience probably slightly compounded the image problem attorneys have with the public (but that's another entry in this blog.)

My Point of View

From my point of view, I had protected my clients from exposing themselves to a losing eviction hearing. I kept their mistakes out of the public record, kept them from losing a lot more money in the long run, and got them out of the situation they had found themselves in. The judge would have (at the very least) frowned at me for bringing them before him. I would not have blamed him either. As an attorney, the requirement to look after my clients' best interests required that I advise them that this minor loss in the short term was acceptable compared to the major loss in the long term.

Then the fee arbitration process started:

The Invitation to Arbitrate

Shortly after my retainer was due, I received in the mail a letter putting me on notice that my client had filed a complaint against me and wanted to arbitrate my fees. I looked up whether I was required to or not, although I had a feeling it was voluntary based on the form. I then found this in the ethical rules "Since the fee arbitration rule (chapter 14) has been established by the bar to provide a procedure for resolution of fee disputes, the lawyer should conscientiously consider submitting to it."

I gave it some serious thought. I believed it would be a learning experience. I also recognized that although I believed I did nothing wrong, perhaps a more experienced arbitrator would think otherwise. It was important that I found out now if I was making an error before I continued my career.

I also thought that perhaps it would have some type of cathartic effect upon my clients to have their grievances heard out somewhere. They had gone through some fairly emotional times and lost a case they believed (and probably still believe) was a sure winner. Their anger towards me certainly wasn't helping I am sure.

Finally I thought of the irritation I was personally feeling towards them. I did the job, got them out of trouble, and thereafter became their new focus of attack. Why should I submit to arbitration? I was, after all, entitled to my fee. It was that attorney arrogance rearing it's ugly head like it sometimes does.

I eventually signed the agreement and sent an outline of my side of the case (the clients sent their point of view initially) to be forwarded to the assigned arbitrator. I brought out my case folder and gathered the evidence I believed would be pertinent to winning my argument.

Silence... and then...

I got the letter in the mail. The case was assigned to an arbitrator close by. There was a date, a place, and a time. I marked it on my calendar and reviewed all the evidence for the case. With very little, I believed I had everything I needed to prove I was entitled to my fee:

The retainer agreement;

The evidence as to why my client would have lost;

Email messages approving a settlement approach;

A signed approval to settle on certain terms;

Another email agreeing to the terms I arrived at with the other attorney; and

Further emails which showed why the case was going to be lost had it proceeded to trial.

I taped it up in a folder, which felt quite thin and insubstantial. I went about my business as I waited for the hearing date.

The Hearing

That morning I got up and reviewed my thin little folder. As the time for the hearing approached, I headed out to the court house where it was to be held. I was a bit nervous, but still pretty confident. When I arrived I was worried I was going to be late. I wondered if they retained an attorney to represent them. There were rains, traffic was heavy because of it, and I elected to take the back roads... which still almost had me arriving late. It was sort of embarrassing. I was never late for a court house function for any of my clients, and here I was, about to arrive late to defend myself.

My former clients were already there and I arrived with a few minutes to spare. Luckily for me, the arbitrator was caught in the same traffic and was late himself. It gave me a chance to go over my case for the last time. He looked to be in a good mood when he arrived, and even cracked a joke at his own expense.

We all sat and were sworn in. The arbitrator started by allowing me to open. I stayed on topic, presenting fact after fact as the arbitrator guided the hearing. He completely destroyed my well thought out plan for what should be presented first, second, and so on... apparently he had his own ideas. Since I had never been to arbitration before, I was grateful he was directing us.

He then asked my clients to present their case. They had a mountain of paperwork, folders, tape recordings, emails, etc. Their emotions, so familiar from a few months back, bubbled up very quickly. They accused me of letting them down, disappointing them, caving in when faced with another attorney, etc. They compared their plight to the Zimmerman trial, attacked the landlord, and the arbitrator patiently struggled to keep them focused as they tried to explain their interpretation of the law. While they vented I took notes and remained silent.

I rebutted a few points and they ended up admitting my strategy in the case worked out for them later on (although it was poorly executed without an attorney), and I finally rested my case. Visibly frustrated, and likely thinking the entire system was rigged against them, they followed suit. The arbitrator had attempted to explain to them that we (collectively), as attorneys, had certain ethical obligations. That sometimes a fight is started but cannot be won. He spoke about buyer's remorse. He mentioned that despite it's imperfections, we had a great justice system. I do not believed he convinced them.

After all the evidence was given, he announced he would review the case and issue a ruling in a few days. Great I thought, more waiting. My former clients seemed frustrated. That cathartic effect I hoped they would experience seemed elusive.

The Judgment

A little while after the hearing a letter appeared in my P.O. Box from the arbitrator. It was a detailed list of the facts presented and the arbitrator's opinion. I won. I felt vindicated that I had not acted improperly.

Still, I think back on my former clients every once in a while. How did I lose control of the situation? Did I ever have control to begin with? It certainly has changed how I vet my clients before accepting employment. I still enjoy helping tenants fight oppressive landlords, but in this case I think that perhaps I was so focused on the landlord as a target that I had missed the shortcomings of my clients. My professor once told me these situations are why it's called the "practice" of law, because it takes practice.

Would I Recommend the Program?

Yes. It is an opportunity for clients to air their grievances. Even if those grievances are not founded on any legal theory, running a law firm is (at least partly) an exercise in customer satisfaction. The fact that one is brought before a fee arbitration hearing is proof positive the client was not satisfied. Like all businesses, satisfying all of your customers is not always possible. But from the failures, lessons can certainly be extracted, improvements implemented to avoid similar problems in the future, and of course a nice blog entry can be drafted for others to read and learn from your experience.

The Florida Bar Fee Arbitration program is a convenient and well intended program. Like other aspects of the law, it is likely not perfect. But I highly recommend every attorney in Florida experiencing such complaints from a client strongly consider this avenue to resolve the dispute. If this happens to me again (and I hope it does not), I will certainly avail myself of its services.

If you are the target of an irritated client and would like to go over what is going to happen, call me or email me. I'll be happy to speak with you.